Grin and Forbear it: Suffering Statutory Forbearance Under the Telecommunications Act of 1996

Abstract

Section 10 of the Telecommunications Act, codified at 47 U.S.C. § 160, requires the Commission not to apply its regulatory authority where it is not needed to ensure reasonable pricing of telecommunications services or protect consumers, as long as such forbearance is consistent with the public interest. The statute provides a mechanism for carriers to apply for such forbearance; but if the Commission does not deny a petition within one year of its receipt, plus a ninety day optional extension, the petition is deemed granted by operation of law under § 160(c), and is virtually unreviewable by the Commission or the courts. This paper examines the history of the provision, the effects of this provision in the industry, focusing on the operation of § 160(c) in 2006 related to Verizon's broadband special access services, and ultimately recommends that Congress amend the statute in order to provide better protections for consumers and competitors alike.

Keywords: telecommunications, regulation, regulatory forbearance, forbearance, administrative law, special access